From November 2021, people who are eligible will have the option to request assisted dying. If you or your family member are contemplating this step, or you are a medical professional who may need to give advice, or you are a lawyer with clients who want to plan for the future, there are a range of things you should know.
Eligibility
The End of Life Choice Act (Act) specifies that only a limited range of people are eligible for assisted dying. They must:
- be aged 18 years or over;
- be either a New Zealand citizen or a permanent resident
- suffer from a terminal illness that is likely to end their life within 6 months
- be in an advanced state of irreversible decline in physical capability;
- experience unbearable suffering that cannot be relieved in a manner that they consider tolerable; and
- be competent to make an informed decision about assisted dying.
The gateway criteria for eligibility rests on a person’s adulthood (by their age of 18 years) and their being a New Zealand citizen or permanent resident, which are objectively assessable criteria. The requirement to be a New Zealand citizen or permanent resident means that a person is eligible for funded health care services. It also means that New Zealand will not have “assisted dying tourists”, being people who travel to avail themselves of the service when it is not permitted in their own country.
The balance of the criteria – all of which must be satisfied – rely heavily on an assessment process and will necessitate the exercise of careful clinical judgement. The medical requirements for assisted dying are strict, and the manner of drafting of the Act requires that all of the eligibility requirements are met, not simply the majority.
At the same time, the Act requires that the person requesting assisted dying would need to have the mental and physical fortitude to get through complex, multiple assessments and meetings, and take the time that each step will require. Accordingly, eligibility is a relatively high threshold.
Given the very specific eligibility criteria to access assisted dying, not everyone suffering from a serious illness will be eligible for assisted dying.
There is uncertainty about what the demand for the service will be, given assisted dying has never been provided in New Zealand before. In the overseas jurisdictions, assisted dying accounts for between 0.3 percent and 2 percent of all deaths. Based on overseas experiences, the Ministry of Health estimates up to 950 people could apply for assisted dying each year, with up to 350 being assisted to die.
Ineligibility
The Act also specifies that a person is not eligible if the only reason that assisted dying is sought is because the person:
- is suffering from any form of mental disorder or mental illness; or
- has a disability of any kind; or
- is of advanced age.
Competence
One of the criteria for eligibility is competence. Under the Act, a person is considered to be competent to make an informed decision about assisted dying if the person is able to:
- understand information about the nature of assisted dying that is relevant to the decision; and
- retain that information to the extent necessary to make the decision; and
- use or weigh that information as part of the process of making the decision; and
- communicate the decision in some way.
This means that assisted dying is unlikely to be available to someone with advanced dementia, as they would be unlikely to be considered competent, particularly when at the stage that the other criteria are met.
The safeguards in the process
There are a number of statutory safeguards built into the Act. These include:
- a discussion about assisted dying must not be initiated by a health practitioner; only the patient may raise the subject;
- it is a multi-step process, and at each stage forms must be sent to a Registrar; these will confirm the criteria, but will also advise the Registrar if the process is brought to an end for any reason;
- two different medical practitioners must independently confirm that the patient is eligible for assisted dying;
- if either medical practitioner is unsure whether the patient is competent to make the decision, the patient also must be referred to a psychiatrist to determine competence;
- after eligibility is confirmed, and again before the medication is administered, the patient must be reminded of their right to change their mind; and
- at any stage the medical practitioner can end the process if they believe that there is pressure being placed on the patient.
What should you do now?
The Ministry of Health has recommended that anyone likely to be having a conversation about assisted dying think in advance about how to talk about it.
Medical practitioners should also consider whether they are willing to assist in the process, or whether they have a conscientious objection. In that case, they should find someone to whom they will be able to refer patients.
Lawyers talking with clients about assisted dying should know about the eligibility criteria, and about the other options available if the client is not eligible.
Assisted dying may form part of a wider conversation around wills, enduring powers of attorneys, and advance care plans.
If you have any questions about the End of Life Choice Act or advance care planning please contact Nick Laing.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
